Sustainable Drainage

Amendment proposed (19 January): 149, in schedule 3, page 47, leave out lines 36 to 39 and insert—

‘(1) In this Schedule “drainage system” means—

(a) a structure designed to receive rainwater except—

(i) a public sewer, or

(ii) a natural watercourse; and

(b) any lateral drain or sewer communicating with a drainage system.’.—(Miss McIntosh.)

Question again proposed, That the amendment be made.

I remind the Committee that with this we are discussing the following: Amendment 150, in schedule 3, page 48, leave out lines 4 and 5 and insert—

‘(3) “Lateral drain”, “sewer” and “public sewer” have the meanings given by section 219(1) of the Water Industry Act 1991.’.

Amendment 18, in schedule 3, page 48, line 8, leave out paragraph 2 and insert—

‘“Sustainable Urban Drainage System” means a drainage system which—

(a) facilitates attenuation, settlement or treatment of surface water from two or more premises (whether or not together with road water), and

(b) includes one or more of the following:

(i) inlet;

(ii) outlet structures;

(iii) swales;

(iv) constructed wetlands;

(v) ponds;

(vi) filter trenches;

(vii) attenuation tanks, and

(viii) detention basins (together with any associated pipes and equipment).’.

Amendment 163, in schedule 3, page 48, line 12, after ‘the’, insert ‘natural’.

New Clause 12—Sustainable urban drainage systems—

‘A full definition of Sustainable Urban Drainage Systems (SUDS) is “Sustainable drainage systems or sustainable (urban) drainage systems: a sequence of management practices and control structures designed to drain surface water in a more sustainable fashion than some conventional techniques (may also be referred to as SuDS).”.’.

I was not entirely reassured by the Minister’s comments on the group, but we have debated it fully. I will therefore not press Amendment 163 to a vote.

Good morning, Mr. Martlew, and welcome back to the Chair.

I enjoyed the Minister’s explanatory remarks, which weaved through the issue of urban, suburban or otherwise with regard to SUDS. I did not find his clarification entirely convincing. Amendments 149, 150 and 18, and new Clause 12 are extremely important. We submitted the proposal on the Scottish definition for the purposes of debate and it was not as convincing as the others.

We have received a number of submissions from across the industry. The consensus is that we have to get the definition right in clause 32 and schedule 3. A number of water companies, the water industry and the Consumer Council for Water are convinced that we need a proper definition. The terms “sustainable drainage systems” and “sustainable urban drainage systems” are interchangeable. As I mentioned at the outset, they were called SUDS originally because they tended to be in urban areas.

It is important to say to the Minister that we need to understand that it is particularly drainage systems that might pass into the sewerage system that are of concern with regard to later clauses and amendments, so that we can be sure that we fulfil Pitt’s recommendation of ending the automatic right to connect. We will therefore press the Minister on amendments 149 and 150 and new clause 12. We have had a good rehearsal of the remarks. He might be minded to accept the proposals. I do not know whether there has been a change in his position after two days of reflection, but that would be most welcome. If not, we will press the proposals to the vote.

Minister, have you anything to say?

No.

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived.

Amendment proposed: 150, in schedule 3, page 48, leave out lines 4 and 5 and insert—

‘(3) “Lateral drain”, “sewer” and “public sewer” have the meanings given by section 219(1) of the Water Industry Act 1991.’.—(Miss McIntosh.)

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived.

I beg to move Amendment 30, in schedule 3, page 48, line 37, leave out ‘consult’ and insert

‘as soon as possible instigate, publish and have regard to a review undertaken by a panel of independent persons pertaining to the costs currently incurred by local authorties in maintaining private sewers before the Schedule is commenced’.

With this it will be convenient to discuss the following: Amendment 31, in schedule 3, page 55, line 39, at end insert—

‘(8) The Minister must consult persons who in the Minister’s opinion represent interests likely to be affected by this Schedule and publish a report detailing how the adoption and maintenance of drainage systems is to be funded before the Schedule is commenced.’.

New Clause 11—Pilot schemes for adoption of private drains—

‘The Environment Agency must establish a pilot scheme with the aim of—

(a) auditing all private drains and sewers;

(b) assessing their condition;

(c) estimating the likely cost of adopting all private drains and sewers in 2011, and

(d) estimating the likely cost on customers’ Bills.’.

I am glad to move this little group of amendments relating to private drains and sewers. Is the Minister minded to share with the Committee his letter to me dated 30 December 2009 in which he responded to a Constituency case about the transfer of private sewers? I want to refer to certain parts of that letter, the particulars of which will be of interest to the Committee.

In the letter the Minister confirmed that on 15 December 2008 the Government announced that the transfer of all private sewers and lateral drains linked to the public sewerage system would take place from 2011. He also said that the transfer was the only comprehensive solution to the range of problems presented by private sewers. We know from the floods in 2007 and previously, that owners are often not made aware of their liability when buying a property, and think it unfair when they end up being held responsible for pipework outside their property boundaries, often in neighbours’ gardens or under highways.

Private sewer and lateral drain owners are well in the Majority of sewerage bill payers. The Minister stated in his letter that the Government have always been mindful of the fact that transfer will lead to an increase in customers’ sewerage Bills, but that customer research has indicated firm support for the transfer. I want to place on the record our support for the transfer.

The Minister said that about 180,000 km of private sewers and lateral drains connected to the public network benefit from no effective operational regime. He said that the transfer will provide a better planned and more integrated management of the wider sewerage network. What work have the Government undertaken, and what stage has it reached, to enable them to state definitively where the kilometres of private sewers and lateral drains are, and whether they have identified ownership? In the context of the schedule, and particularly this small group of amendments, such information is extremely important, especially since the floods of 2007. I know from the many visits that both I and other hon. Members made what a huge problem this is. The Government have now had sufficient time to be able to tell us definitively where the private sewers and lateral drains are, how many there are, who owns them and who has been maintaining them.

The Minister also states in his letter that the Government’s ongoing work resulted in a further consultation in July 2007, which followed an announcement in February of that year that the Government were proceeding with the transfer. The summary response was published in July 2008. The Minister also states that subject to approval by Parliament of regulations to effect transfer, which will determine the full extent of what is covered, the proposed transfer will apply to all private sewers and lateral drains that drain into the public network, including pumping stations and associated rising mains.

When will the guidance be published? If the transfer is to take place next year, the guidance must be published this year. It would be immensely helpful if the Minister could give us a definitive month rather than just loosely saying spring, summer or autumn.

Again let me underscore the fact that we and the local authorities estimate that the Government’s figures are completely wrong in relation to other parts of the Bill. For example, the Minister believes that the local government resources will be funded by the sale of the drains. If the Minister has done the work that the Government said that they would do, he must accept that most of the  ownership lies outwith the ownership of local authorities. That is a very serious point and goes to the heart of the resource and funding of other significant parts of the Bill. For that purpose, Amendment 30 leaves out “consult” and insists that we proceed to instigate and publish the review of independent persons to establish the costs incurred by local authorities in maintaining private sewers before the schedule is commenced. That will require the Minister to put together an independent panel to review the current costs to local authorities of maintaining private sewers, and have regard to their findings before the Clause commences. The reason why that is so important is that the vast majority of such sewers do not fall within the ownership of local authorities, which means that the Government’s sums are plainly wrong, and go to the core of the fact that local government authorities will not have the money from their existing budgets to implement core parts of the Bill.

The Local Government Association rejects the assumptions on the cost of private sewers and supports this amendment, which requires the Minister to review the current expenditure by local authorities on the maintenance of private sewers before the schedule is brought into action.

The Department for Environment, Food and Rural Affairs has stated that local authorities adopting the maintenance of SUDS will be funded in part through this transfer of private sewers to water sewerage companies, thereby alleviating local authorities of the responsibility for investigating and dealing with potential problems. I should like to put it on the record that the Local Government Association rejects the assumption on the costs of private sewers. In its view, the assumptions used by the Department are based on data that is seven years out of date and is garnered from only 12 per cent. of local authorities. Therefore, it does not bear out that the local authorities will have anything like the resources that they need to implement other parts of the Bill.

Therefore, in its assumptions, the Department is creating fundamental weaknesses in the impact assessments and we press the Government urgently to review them.

Amendment 31 requires the Minister to consult persons affected by schedule 3 and publish a report setting out how the adoption and maintenance of drainage systems is to be funded in the long term before the schedule is commenced. The reason for the amendment is that the LGA believes, again, that the model for charging for sustainable urban drainage systems is unfair. DEFRA has stated that the model is time limited and will, in any event, need to be revisited in eight years’ time. Therefore, it is important that the issue is addressed now, not in eight years’ time.

Further, the Bill will create an unfair system for charging for SUDS, which will mean that people connected on SUDS will not pay the drainage charges. That clearly does not follow the “polluter pays” principle to which we are wedded and, I believe, the Government are also firmly attached, and will mean that some residents in the area will be paying drainage while others will not. That must be dealt with. Local government authorities  believe that all properties should pay a drainage charge, including those that are drained into sustainable urban drains. That would not be a new burden on property owners because those connected on mains drainage already pay a charge as part of their water bill.

We are seeking to ensure that sustainable funding for sustainable urban drainage systems is in place from the commencement of schedule 3 coming in effect. Without the amendment, the Government run the risk of undermining the implementation of SUDS across the country, because local authorities will legitimately be concerned about simply not having the income stream necessary to maintain these urban drainage systems in the future. The LGA is working with experts on alternative systems and will be happy to meet and work with the Department to create a sustainable funding model.

New clause 11 relates to the fact that it would be pertinent at this time for the Environment Agency to establish a pilot scheme with the aim of auditing all private drains and sewers, assessing their condition, estimating the likely cost of adopting all private drains and sewers in 2009 and estimating the likely cost on customers’ bills. I hope that the Minister will have some regard to the concerns of many of those points and that he will look favourably on my remarks. As I said at the outset, without these amendments, it is simply impossible for us to make good the recommendations contained in the Pitt report.

I shall speak briefly to the amendments. Amendment 30 reflects a genuine concern of the LGA and others. Benefits that are likely to accrue from a transfer of responsibilities have not been adequately calculated. As the hon. Member for Vale of York rightly pointed out, that has huge implications for whether the other responsibilities given to lead local authorities with responsibility for flood risk management in other parts of the Bill are financial sustainable. An important issue has been raised and we are happy to support amendment 30.

Amendment 31 addresses the important issue of how to support the adoption of sustainable drainage systems. I am rather less keen on that measure, because it seems to introduce the possibility of challenge to that adoption on grounds of inadequate consultation. I suspect that rather than speeding up the introduction of sustainable drainage systems, which I think we all want, the amendment might end up sinking them into the mud, so I am rather less keen on it.

New Clause 11 goes much too far. It suggests pilot schemes for something that has already been assessed and for which there is already an impact assessment. The answer is that it will add up to £12 per household bill per annum to the cost of water Bills, as I have mentioned in the House several times. We could go over that matter again, but I am not sure that dealing with it is the Government’s job either. That is Ofwat’s job, because it is responsible for the business plans of the water companies and the pricing regime that follows from them. I am not always a huge fan of Ofwat, but on this occasion we should let it get on with its job.

Briefly, following on from the comments of the hon. Member for Cheltenham and the proposals made by my hon.  Friend the Member for Vale of York, I think it is important that we address the issue of whether we assess the cost or the condition. They could be two different things, but I certainly think that conditions need to be assessed.

I know from experience about the troubles that were caused in Tewkesbury because of inadequate drains and sewers, whether public or private. The realisation does not come to anyone until there is heavy rainfall, because drains and sewers can often cope with ordinary rainfall and usage, but when we get excessive rainfall the problems literally start to surface.

We keep hearing how the rainfall in 2007 was a 1-in-100 years, 1-in-500 years or 1-in-1,000 years event and so on, but I had calls from my Constituency just yesterday about flooding taking place—the rivers are coming up and the roads are being flooded. That will not make the national news because it happens frequently.

Whether new Clause 11 is perfectly worded or not, I think that we have to have some system for assessing the condition of drains and sewers. It was one of Pitt’s biggest concerns that we not only assess who owns and is responsible for such waterways but that something is done about them, for the reasons that I gave.

May I also ask the Minister a question? The work of internal drainage boards is important, as we have heard, but often their remit is limited through geography. In my constituency, they can work west but not east of the Severn, yet many villages east of the Severn in my constituency are subject to flooding and need work carried out. The IDB might well want to carry out the work itself but is not permitted to do so because of what might be considered artificial boundaries. Has the Minister given any consideration to flexibility in that respect?

I forgot to mention earlier that it is very good to serve under your stewardship, Mr. Martlew, as we head for the final hurdles of the Committee. I am content that the hon. Member for Vale of York has put on the record the letter in respect of her constituent—it refers to our consistent position on the transfer of sewers—and her clear support for the transfer.

The crux of the amendments is funding, plus some other aspects. Let me turn directly to the amendments. The hon. Members for Vale of York and for Upminster tabled Amendment 30, which would change paragraph 5(4) of schedule 3 and require the Minister to

“instigate, publish and have regard to a review undertaken by a panel of independent persons pertaining to the costs currently incurred by local authorities in maintaining private sewers” before the sustainable drainage proposals in the schedule are commenced.

The hon. Members also tabled amendment 31, which proposes that the Minister must consult those persons who are likely to be affected by the arrangements for sustainable drainage set out in the schedule, and

“publish a report detailing how the adoption and maintenance of drainage systems is to be funded before the Schedule is commenced.”

Funding matters relating to schedule 3 have already been discussed at length during scrutiny of the Bill. For a record of those detailed discussions, I refer members of the Committee to columns 3, 172 to 176, and 179 to 181 of the Hansard record of the Committee’s sittings.  As a result, I do not intend to take the Committee’s time to reiterate the debate in full. However, I will bring hon. Members up to date.

I am pleased to report that my officials have had discussions with the LGA since our earlier sittings—in the past week—to explore how a formal arrangement between us might work. It could include, for example, commissioning joint evidence-gathering, keeping under review the resource implications of the Bill, and overseeing and advising on training and capacity issues more generally. We have no agreement as yet, but the LGA seems to be open to the proposal, and I shall be writing to Councillor Porter at the LGA shortly to set out what I hope will be a sensible approach.

As I have already made clear, the duty to adopt SuDS will be funded in full one way or another. We undertake to publish a clear way forward that takes account of circumstances faced by local authorities and developers in time for implementation of the Bill’s provisions so that measures are in place to enable local authorities to implement SuDS in full, and in full certainty that there will be no gap in funding.

Having made the commitment to ensure that SuDS maintenance is funded, the Government will consult appropriately if legislation is required to deliver a funding mechanism. The Government have also made it clear that we will keep the costs and assumptions implied by the Bill and by the transfer of private sewers under review.

There is a problem with amendment 30. I am sure that it is unintentional, but the amendment would remove the requirement for the Minister to consult before publishing national standards for sustainable drainage systems. The national standards will set out how SuDS must be designed, constructed, operated and maintained. I am sure that the hon. Members for Vale of York and for Upminster would agree that the national standards document will be key to achieving the delivery and effective operation of SuDS, so consultation before they are published, whether on commencement or when they are revised in future, is critical. We do not wish to lose that important provision.

Will the national standards document explain clearly how disputes over responsibility and ownership will be settled, because that is crucial to how the whole operation will go forward?

My hon. Friend raises a good point, which I will turn to in a moment after I finish my comments.

New Clause 11 would place the Environment Agency under a duty to establish a pilot scheme to ascertain the extent and condition of the existing private sewers and drains. The Government have previously considered whether to establish pilot schemes for the proposed transfer of private sewers and lateral drains. DEFRA’s July 2007 consultation paper on implementation options for the transfer of private sewers sought views on the advantages of running pilot schemes, in the light of the challenge of finding areas that would be usefully representative, either of individual water and sewerage companies’ areas or nationally.

Ofwat also considered that in order to yield meaningful results a pilot would need to run for a significant length of time—approximately three years. Respondents to the  consultation did not feel that pilots would be of benefit, and the stakeholder steering group assisting DEFRA’s review of private sewers agreed. The Environment Agency has no direct responsibility for private sewers, so estimating the cost of transfer would fall to the water and sewerage companies and the independent economic regulator, Ofwat. The latest estimate from UK Water Industry Research indicates that the cost of a full mapping and surveying exercise to ascertain the extent and condition of private sewers would be in excess of £1 billion. Even undertaking pilot schemes would be proportionately extremely expensive, so I do not accept that the pilots are likely to yield sufficiently useful information to warrant the cost, and they would lead to a delay in bringing the benefits of transfer to householders, which we all want to see.

New clause 11 would duplicate work that has already been carried out. Costs and benefits have been extensively considered by the companies and reviewed by Ofwat, the relevant and competent authority. As the hon. Member for Cheltenham said, the cost estimates were set out in the impact assessment that accompanied the Government’s announcement on 15 December 2008 of our decision to proceed with transfer: more than £1 billion in one-off capital costs and an average annual expenditure of £133 million on operating costs.

The assessment also stated Ofwat’s latest estimate for the impact on customers’ Bills: in the range of £4 to £12 a year. However, as we all know, we are faced with constituents who unexpectedly have bills of several thousand pounds landing on their doorsteps when crumbling old systems collapse. An updated impact assessment will accompany our consultation on the regulation for transfer when they are published.

I will turn to the additional points raised on where the private sewers are. All sewers not declared as public are private sewers by default, according to the current mapping. As I mentioned, the locating and mapping of those would cost about £1 billion, which we do not consider would be cost-effective. It would also delay the transfer, which we need to get on with.

I was asked when the transfer will take place. The transfer of private sewers will happen by regulation, as we have said, rather than through the Bill. The exact date of transfer will be specified in the regulation, which will be by affirmative resolution, so we must first consult on them and bring them before Parliament for approval. The date will be stipulated in the regulations.

A transfer will not take place before 2011. We have to allow the water industry as a whole to make preparations for the changes that will arise. For example, water and sewerage companies need to make contractual arrangements to meet the increased work load demands and drainage contractors will need to adjust business plans in light of the changes that the transfer will bring. DEFRA is currently preparing consultations on the regulation for publication in the next couple of months.

We are addressing the funding needs for SuDS now, as I said in the public evidence session. In respect of the options for long-term funding of SuDS maintenance, there are some obvious candidates, but none of them is so straightforward that we can decide right now, straight  away, without proper further consideration. For example, there could be commuted sums on developers or direct charges on householders benefiting from the SuDS, who can expect as a result of those to pay a reduced water bill depending on any connection to the sewer. Charges could be collected either by the local authority or as part of water bills or we could leave it with taxpayers in general to fund, through specific grants to local authorities. But we will make the position clear before the legislation commences, rather than just grabbing something now and bolting it on to the Bill.

My hon. Friend the Member for Stroud asked whether the national standards for SuDS would take into account ways of managing disputes. If there is a dispute over an authority’s refusal to approve a SuDS that is needed to allow construction work to begin on a development, there are appeal mechanisms in the Bill for such a situation. I can assure him that that is so. There are also appeal mechanisms for decisions to adopt SuDS.

With those assurances, I ask the hon. Member for Vale of York to consider asking leave to withdraw his Amendment.

I am amazed that the Minister thinks that those were assurances. I welcome the return to the Committee of the hon. Member for Stroud; I found his point interesting and the Minister addressed it in some measure, although his remarks otherwise were short of what we were hoping for. I thought they were vague in the extreme on how the charges will be imposed: that is what Committee members are hearing in Constituency correspondence throughout the country.

My hon. Friend the Member for Tewkesbury does his constituency down. Tewkesbury and York were again the national news today owing to their being at risk of flooding because of the thaw: they are never far from our thoughts.

The Minister has not given us any reassurance on how SuDS maintenance will be charged. That is unacceptable one year before the new arrangements are to come into place. In respect of when the guidance will be published, saying that something will be done in a couple of months is vague and amorphous.

I contradict the Minister’s statement that we do not wish to consult. The point is that we have no confidence in the ministerial Department doing the consultation. He failed to respond on where it is with the audit at present and how many qualities there are. We wish to see an independent panel take up the cudgels for that purpose. So I wish to press Amendment 30 to a vote.

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived.

I beg to move Amendment 148, in schedule 3, page 51, line 25, at end insert—

‘(e) Internal Drainage Boards, if the approving body thinks that the drainage system may directly or indirectly involve the discharge of . water into an Internal Drainage District.’.

With this it will be convenient to discuss the following: Amendment 165, in schedule 3, page 51, line 29, at end insert—

‘(5) The Minister may make regulations about timing and procedure for determination of applications for approval; and the regulations may, in particular, specify the consequence of failure to comply with them.’.

Government amendments 158 and 159.

I hope that the Amendment is clear and understandable, and that it will attract support from the Minister and the Committee. It relates to earlier discussions we have had.

The Association of Drainage Authorities is concerned by the definitions in the Bill. I declare an interest as the vice-president of the ADA. The ADA does not believe that the Minister intends the sustainable drainage provisions to include extensive hydrological systems, such as internal drainage systems. This is a technical, helpful amendment that is intended to assist the Committee in considering whether the exemption should apply to all watercourses, natural or not, and whether a more refined definition should be sought that utilises the terminology of “heavily modified” and “artificial” water bodies used in the water framework directive. The wording in the amendment is:

“Internal Drainage Boards, if the approving body thinks that the drainage system may directly or indirectly involve the discharge of water into an Internal Drainage District.”

That would fulfil the purpose.

Paragraph 1(1) of schedule 3 defines a drainage system as any

“structure designed to receive rainwater” except for “a public sewer” or “a natural watercourse”. Although natural watercourse is defined as “a river or stream”, it is still governed by the word “natural”. The difficulty is that many watercourses in lowland areas of England and Wales are not natural, but engineered channels created by man. Under the water framework directive, those are defined as either “heavily modified” or “artificial” water bodies. As currently defined, most internal drainage board systems, certainly in the fens, would be considered to be SuDS, where approval is needed from the approving body before a discharge is permitted. The purpose of the amendment is to tidy up the provision for the sake of clarity.

I do not know whether the hon. Lady has seen the interesting paper from the Wildfowl and Wetlands Trust, which makes the parallel between SuDS and wetlands. We should note the fact that wetlands are partly natural, but partly man-made. We use them as an extension of SuDS because it would be stupid not to. I am sure she would agree with that.

I entirely endorse the hon. Gentleman’s point. I went to see such a wetland in an area adjacent to my Constituency on a particularly wet day. A peat bog was being created for the purpose he described. We enthusiastically endorse wetlands. We accept that previous Governments—mostly Conservative Governments—had capital programmes to create engineered channels, such as those that are referred to in the Amendment. I think that there is a meeting of minds on this point and I invite the Committee to support the amendment.

I shall speak to Amendment 165, which is in my name. It, too, is straightforward. Paragraph 11 of schedule 3 deals with the determination of applications for approval. It is rather odd that no time scales for determination are set. Similarly, there is no provision to deal with a failure to comply with time scales, should they be set. I would be grateful if the Minister considered whether it was possible to make regulations about timing and procedure for the determination of applications for approval and regulations specifying the consequences of failure to comply with time scales so that the process is not open-ended.

Amendments 148 and 165 are both very helpful in probing the Government. Amendment 148 was dealt with first and refers to internal drainage boards. As we all recognise, IDBs oversee the regulation of ordinary watercourses and works powers in respect of areas of special drainage need, and they have a critical role to play in the future of flood risk and water level management arrangements. I agree with hon. Members that it seems sensible that IDBs should be consulted by the SuDS-approving body where appropriate.

We will, indeed, consider that matter further and think carefully about what the most appropriate drafting would be. The amendment gives a wide definition, on a district-wide level, and that does not align with the conditions for consulting the other statutory consultees. However, the amendment is helpful and we would be happy to take the issue away and bring something back once we have considered the drafting.

I would like to take this opportunity to clarify an issue relating to IDBs that I touched on during the evening of 19 January. I suggest that it will not be necessary for IDBs to seek consent from the SuDS-approving body, but that some developments may require planning permission and might be very large. For example, where the IDB is constructing large drainage infrastructure, it may be necessary to seek approval from the SuDS-approving body. In such circumstances, the development would be in line with the local strategy agreed between all the relevant bodies, including the SAB if required, so there should be no obstacle. Furthermore, as I mentioned yesterday, the Bill also contains provision, under paragraph 7(4)(a), (b) and (c) of schedule 3, to specify by order what would require approval and any exemptions. So after consultation and discussion with the internal drainage boards, we will set out what IDB works would require approval of the SAB. I hope that clarification is helpful.

My hon. Friend the Member for City of Durham tabled amendment 165. As she stated, the amendment is designed to enable the Minister to make regulations about the timing and the procedure for the determination of applications by the SuDS-approving body, and about  the consequences of not complying with them. My hon. Friend makes a good point about an area in which there may, indeed, be a gap. The amendment would provide assurance for developers and others that the SuDS-approving body must make a timely decision on the approval of drainage plans, and therefore not hold up the development process. That makes good sense, so we will consider the matter further alongside the earlier amendment, and will return to it on Report. In light of that, before we come to my amendments, perhaps the hon. Member for Vale of York and my hon. Friend the Member for City of Durham would be prepared to withdraw the amendments, and we will consider whether we can bring something forward.

We are only dealing with Amendment 148 at the moment. Miss McIntosh will have the right to reply at the end of the debate.

Thank you, Mr. Martlew. Amendments 158 and 159 will allow the Government to issue guidance to the SuDS-approving body on the amount that may be specified as a non-performance bond, which is provided for in paragraphs 11(2)(b) and 12 of schedule 3, and on the process for approving surface water drainage application. The SAB will be required to have regard to any guidance that has been issued.

The bond is used by the SAB to pay for any work that is necessary to complete the drainage system to the approved plan, or to put the system right, should the developer be unable to do so. The bond provides protection for property owners, particularly those buying off-plan, and ensure that the SuDS draining their property are built and operate as designed. The bond is also for the SAB that must maintain the SuDS. Under the existing clauses, if any money is left over, or if it is not necessary to call on the bond, the SAB must pay it back to the applicant. The Amendment will provide clarity for property developers about the level of bond required.

Guidance on the approval process will enable the SuDS-approving body, and property developers who apply to it, to have clarity and consistency about aspects of the approval process. For example, if required, the guidance suggests a format for applications to the SAB to provide the developer with a consistent approach for seeking approval, regardless of where the development is located. If needed, the guidance could also set a framework for other aspects of the process, such as the way in which the SuDS-approving body works with its statutory consultees or performs some of its other duties. Guidance can be issued or amended in the light of experience of implementation of SuDS. I am pleased to commend amendments 158 and 159.

I hesitate here because the Committee heard the Minister giving us an assurance. However, if the Minister does not return on Report with an Amendment, then the moment will have passed. I am not sure whether he will return with an amendment of his own.

We intend to take away the matter, look at the drafting and return with an Amendment on Report.

I am most grateful for that. The record will show that an Amendment will stand on the Order Paper a week on Monday, and we look forward to that. For the moment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move Amendment 68, in schedule 3, page 51, line 28, after ‘applicant’ insert

‘or, in the case of a combined application, the planning authority,’.

This amendment will avoid any duplication of notification of the SuDS-approving body’s determination of an application for approval of surface water drainage systems when planning permission is also required. Such applications are referred to as combined applications. The amendment means that the SuDS-approving body must notify the planning authority of its decision on the SuDS drainage application. The planning authority will then notify the applicant of both the SuDS-approving body’s decision and its own decision on the planning application. The amendment does not affect the procedures regarding the SuDS-approving body notifying applicants when freestanding applications for approval are received.

Amendment 68 agreed to.

Amendment made: 158, in schedule 3, page 52, line 6, at end insert—

‘(6) The Minister may issue guidance about what amounts may be required by way of non-performance bonds; and approving bodies must have regard to the guidance.’.—(Huw Irranca-Davies.)

I beg to move Amendment 33, in schedule 3, page 52, line 16, leave out ‘significantly’.

I moved this amendment for debating purposes. Paragraph 13 (3) of schedule 3 states:

“In making regulations the Minister must have regard to the desirability of ensuring that fee income does not significantly exceed the costs (direct and indirect) that approving bodies incur in connection with approval.”

That poses the question: why should there be any discrepancy? Why, in times of hardship and rising inflation, given all the pressures that approving bodies will be under, should there be any excess, over and above the costs? Surely the purpose of the fee is to cover the pure cost of the work. What else would the money be used for?

I concur with the hon. Lady’s concluding comments. The costs should represent a fair and appropriate charge, and not place an undue burden on the developer. I sympathise with her intention, which is to guarantee a fair deal for property developers by ensuring that the fee charge for the approval of applications does not exceed the costs incurred when processing that application. That is our intention. That is why, under paragraph 13(1) of schedule 3, the Minister will have the power to set regulations for fees. The intention of the regulations will be to ensure that the fees charged by the SuDS-approving bodies are appropriate in light of the direct and indirect costs incurred. I therefore believe that the Bill already reflects the intent of the hon. Members who tabled the Amendment.

However, removing the word “significantly”, as suggested in the amendment, might overly constrain the regulation-making power, and might mean that there had to be  provision for local authorities to calculate the precise costs of a drainage application. Given the wide variation in sites and types of applications and, therefore, the scrutiny involved in assessing them, calculating such fees exactly for each application would be overly burdensome, and I know that the hon. Member for Vale of York wants to avoid placing undue burdens on local authorities. Additionally, the cost of calculating the exact amount might end up being charged to the applicant as part of the processing fee, so the applicant could actually be worse off as a result of the amendment.

While we are on the subject of fees, I would like to take this opportunity to clarify that the approving body can charge a fee to assess the drainage application and to inspect the construction. The SAB can collect the fee directly from the applicant, or the planning authority can collect it on the SuDS-approving body’s behalf in cases where the developer lodges an application for SuDS approval and planning permission at the same time.

Returning to the amendment, I assure the hon. Lady that her intent is provided for in the ability to specify in regulations how the fees will be calculated, and I assure the Committee that the intention in the original regulation-making power is to have a fair fee scheme, but not to put a disproportionate burden on the authority. Given that, I ask the hon. Lady to withdraw the amendment.

I am most grateful for the Minister’s explanation. The purpose of the Amendment was to probe the issue and have a debate on it. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move Amendment 151, in schedule 3, page 52, leave out lines 19 and 20 and insert—

‘(1) The Minister shall by order provide for the enforcement of—

(a) the requirement for approval in paragraph 7(1); and

(b) the duty to maintain in paragraph 21.’.

With this it will be convenient to discuss the following: Amendment 155, in schedule 3, page 54, line 36, leave out ‘becomes responsible for maintaining’ and insert

‘shall be under a duty to maintain’.

New Clause 13—Ownership and maintenance of sustainable urban drainage systems—

‘It shall be stated which body has to be responsible for—

(a) the ownership, and

(b) maintenance of sustainable urban drainage systems.’.

New clause 21—Transfer of sustainable urban drainage systems

‘The Secretary of State may make provision for the transfer of Sustainable Urban Drainage Systems to water and sewerage companies.’.

I hope that the purpose of the Amendment is self-explanatory. We believe that the Minister should, by order, provide for the enforcement of a requirement for approval and the duty to maintain. Amendment 151 was tabled because the Bill does not address those issues clearly enough. The ownership of  SUDS that ultimately connect to the public sewer system should reside with water companies, thereby allowing them to have control over their assets. This is a precursor amendment.

Amendment 155 was tabled to underline that an approving body

“shall be under a duty to maintain”.

The present wording in the Bill,

“becomes responsible for maintaining” does not go far enough. We would like to see a specific duty because, as was said earlier, Pitt wants not just to allow for maintenance but for the public to see that maintenance is being done. Amendment 155 would place a specific duty to maintain which currently is not in the Bill, and it would strengthen the Bill.

New Clause 13 states:

‘It shall be stated which body has to be responsible for—

(a) the ownership, and

(b) maintenance of sustainable urban drainage systems.’, and new clause 21 states:

‘The Secretary of State may make provision for the transfer of Sustainable Urban Drainage Systems to water and sewerage companies.’.

I realise that this is a controversial area, and that, in tabling the amendments, we are breaking new ground. However, we do not know for sure where sustainable urban drainage systems are, particularly SUDS that relate to major new housing developments, which may connect to the public sewer. I have had a helpful note from my own regional Environment Agency, which has headquarters in the Vale of York at Clifton Moor, giving me details of a number of SUDS of this nature in or near York and my own region, with the invitation to go out and see them, so that I can see, touch and feel a SUDS, and walk and paddle about in it, so I will know with even more authority what we are talking about.

If we assume there are three potential owners of the SUDS at the moment, one is the housing development and the residents, who are probably blissfully unaware that that is the case. If the developer creates the SUDS, it is probable that they are not being maintained, because everyone is ignorant, including the present owners. So that is one possibility for the owners of the houses nearby.

The second possibility, which the Government currently accept, is that planning permission is given, and the planning authority then retains ownership and responsibility for the SUDS. The Bill is confusing, because planning permission is given by the lower-tier authority—the district council. Again, it is not clear in the Bill whether that is the case. Rather confusingly, the Bill states that the upper-tier authority will give planning permission for SUDS. But we know that the upper-tier authority, the county council, is currently only responsible for giving planning permission for the highways SUDS, the SUDS that alleviate flooding, potentially retaining surface water, rainwater or any potential flooding from the highway. In all probability, those SUDS do not connect to the sewerage system.

I want to outline a third scenario. In doing so, I am answering a potential question. If the SUDS relating to a housing development flood, and the flood damages the waste water going to the sewerage system for which  water and sewerage companies are responsible, who picks up the bill and who is affected by those potential floods? The answer is the water and sewerage companies and their customers. It is controversial, but we believe that this little group of amendments is necessary. Not every water and sewerage company accepts it, but the Majority do. They are best placed, after the approving body has given planning permission and after the development has been completed, to adopt ownership and responsibility for the maintenance of those SUDS that specifically relate to major housing developments with the potential to flood, overflow and cause a spill from the connection to the main sewerage system. That is my understanding of what Pitt was asking for the Bill to achieve—to give legislative authority to ending the automatic right to connect. As the Bill is currently drafted we would not achieve that. There would be no automatic end to connection.

The group of amendments is controversial, but we believe that they plug the gap and give legislative authority to Pitt, thus ending the automatic right to connect. They would show once and for all that the water and sewerage companies have responsibility. To take it one stage further, we have later amendments that relate to the fact that Ofwat probably does not allow the water and sewerage companies to raise money. I hope that the Minister will approve of the amendments, and recognise that they would improve the Bill.

I want to speak briefly on the Amendment, which addresses an important issue. A frequent and common complaint in the aftermath of the 2007 floods was that maintenance of a variety of drainage assets, such as watercourses and culverts, had been neglected over the years. Examples in Haverley, Whaddon and Charlton Kings in my Constituency spring to mind. Custom and practice was often that local authorities had stepped in and maintained them, but sometimes that custom and practice had fallen into disuse and maintenance had ceased. It was not entirely clear after the floods, when people started to point fingers and blame one another for lack of maintenance, who had legal responsibility. It often emerged that legal responsibility attached to the riparian owners, which was ludicrous in some cases. Riparian ownership of a culvert in Whaddon in a poor part of my constituency seemed in law to be with the people who owned houses metres above the culvert and who were probably not even aware of its existence. Dozens of people would have been involved.

With major housing developments, such legal tangles are not acceptable. Pitt addressed that, and the amendment picks up the fact that sustainable drainage systems in major housing developments may add a whole new dimension to the tangle of responsibilities, so it is welcome in addressing that and seeking to put responsibility for maintenance of such assets beyond doubt.

My hon. Friend is making an important point. A problem that I occasionally deal with in my Constituency is the right of highways authorities to discharge water off a highway on to private land. Sometimes that may be into  a culvert running under a private house. The cost of difficult maintenance of such an asset may be beyond the financial ability of many constituents. The Amendment may address that.

My hon. Friend is right. In practice, local authorities and other water and flood management bodies often stepped in on a grace and favour basis without a robust basis in law. The issue must be addressed. I share the disquiet of the hon. Member for Vale of York that the Bill does not quite establish those responsibilities clearly, and I am happy to support the Amendment.

I want to speak briefly in support of the amendments tabled by my hon. Friend the Member for Vale of York.

It is essential to determine who will maintain what, for reasons that have been given many times. We face extra building in areas that flood, although developers deny that, but many of us have seen flooding on fields that developers propose to build on. Developers rely on sustainable drainage systems being built to overcome the problem but, as the hon. Member for Cheltenham rightly said, far from helping, that could make the problem worse if it is not determined who is responsible for maintaining those systems. The Environment Agency is certainly concerned about that. The chairman of the Environment Agency told that me that on Monday evening. It is a concern.

We have to get this provision into the Bill as things stand, especially if areas are going to suffer from extra building—I hope they are not—perhaps as a result of the regional spatial strategy, or whatever, because the developers are hanging everything on the ability of the new drainage systems to cope with the floodwater or run-off water or whatever, wherever the water comes from. If that is so and that fall-back position is to be given any credence in planning guidance or decisions, we must at least ensure that those systems are properly maintained.

It is a pleasure to serve under your chairmanship once again, Mr. Martlew. May I start where the hon. Member for Tewkesbury, my neighbour, left off? The fundamental weakness of the whole of the drainage provision is that the Environment Agency is not necessarily brought into the planning system. Too often planning authorities are able to make their own judgments and—this used to be so but is no longer the case—ignore the advice of the Environment Agency, although that is difficult for them to do. But it is still possible for the planning authority not to seek the advice of the Environment Agency. I ask my hon. Friend the Minister for clarity on what that process is.

The danger does not necessarily lie in what happens formally in terms of what may come before a planning authority committee, but in deals that are made between planning officers and developers, whereby developers make all manner of wonderful offers and say that they can sort out the difficulties that may result from consequential developments—not necessarily in the place they are developing, but in respect of where the water is likely to go. I have seen it too many times in my Constituency: a developer employs someone with a specialist  who comes up with wonderful ideas and shows that the water will not be problem, but then, lo and behold, two or three years later somewhere that has not flooded for generations starts flooding. By then it is all too late, because it is difficult to prove that something happened as a result of a particular development, and even if that is proved, there is no likelihood that the developer will make good the damage that they have caused.

I want to hear my hon. Friend the Minister say what the Environment Agency’s role is with regard to the process, because we underrate, underestimate and under-use its skills. This is an appeal for resources. I want to know that planning authorities use the expertise of the Environment Agency throughout the process, rather than occasionally, as we know is the case now, with the agency being brought in for bigger or controversial developments, although those are not the ones that slip through the system. It is the other developments that I worry about. Too often the planning authorities arrogate the responsibility, which they have, although they do not have not the knowledge. I want to make sure that they use that responsibility much more wisely.

I am tempted to offer to join my neighbour, the hon. Member for Vale of York, on what should be a fascinating tour of North Yorkshire SuDS.

Will the Minister address the merits of the Scottish system, in which, as I understand it, the highways SUDS—those related in some way to the highways system—are maintained by the local authorities and the SUDS that have an impact on the public drainage system are maintained by the water authority? That seems reasonably clear and seems to have some merit. I hope that he will address that point.

Paragraph 6 of schedule 3 sets out clearly that the responsibility and duties of a SuDS-approving body lie with unitary or county local authorities. It allows the Minister to appoint by order an alternative body to approve drainage systems in a specified area. The SuDS-approving body will have responsibility for the approval, the adoption and the maintenance of SuDS to the new national standards for sustainable drainage. I hope that members of the Committee have received correspondence from me in the past few days expanding on what is set out in the Bill, as it might be helpful.

I want to make it clear that the adoption duty under paragraph 16 of the schedule and the maintenance duty under paragraph 21 will apply only to SuDS that serve more than one property. The SuDS-approving body can also voluntarily adopt all or part of the SuDS when the duty to adopt does not apply under paragraph 20. As I am sure the Committee accepts, adoption does not need to confer ownership, as the new Clause would imply. The maintenance duty for adopted SuDS will ensure that they continue to provide effective drainage for the properties that they serve.

Schedule 3 is designed on the basis that the SuDS-approving body will be the enforcement body. However, Amendment 151 would mean that if, for some reason, the SuDS-approving body failed to undertake its maintenance role, some other public body would have to take enforcement action against the SuDS-approving body. That would be complicated. It would be unusual, and it would be unnecessary. It is directly in the approving  body’s interest to maintain the SuDS to national standards, thereby reducing local flood risk and helping them to carry out one of their other new roles under the Bill. There is a deliberate fit with the wider responsibility of flood risk management.

Furthermore, because we expect many SuDS to be located in public spaces, such as roads and parks, the SuDS-approving body will already be maintaining those spaces. In any case, water and sewerage companies and the EA would be likely to identify areas where maintenance was not being carried out, where it has a knock-on effect on sewers or watercourses. However, should the SuDS-approving body fail to discharge its duties under the Bill, it could be held accountable through the usual democratic channels and ultimately be subject to judicial review.

The amendment would not extend enforcement provisions to the maintenance of SuDS serving single properties. As I said, the SuDS-approving body is not under a duty to maintain such SuDS on individual properties. SuDS on private property will be designated under schedule 1 as a flood risk feature, which means that they cannot be replaced, altered or removed without consent from the SuDS-approving body, an issue that we have debated before. That will mean that they will continue to provide effective drainage for the property. Should a private SuDS not be maintained, and it causes health or other nuisance, the SuDS-approving body can take action under the Building Act 1984, as provided under paragraph 25. We consider that to be good protection.

Amendment 155 tabled by the hon. Members for Vale of York and for Upminster would require a slight change to the wording of SuDS maintenance. I can reassure the hon. Ladies that the current wording of the Bill will have exactly the same effect as the amendment. They have also tabled new clause 21, which would make provision for the transfer of sustainable urban drainage systems to water and sewerage companies. It is important that both the approval and the adoption functions are undertaken by a single organisation, so that considerations of future maintenance and operation are made alongside decisions on the design and the construction of SuDS, especially when SuDS are located in public spaces.

The responsibility for adopting and maintaining SuDS fits well with the local authorities’ wider lead local flood authority role, as set out in clause 9, and their existing responsibilities for highways maintenance, surface water management planning and public space maintenance. Many SuDS, such as those in or beside roads, in football pitches to which we might return later, and public parks will serve a dual role by both tackling surface water run-off and providing a public space.

I am sure hon. Members will be pleased to hear that the Bill does not prevent local authorities, in their role as SuDS-approving bodies, from transferring their adoption functions to water and sewerage companies by agreement. However, the local authority SuDS-approving body would retain responsibility and liability for SuDS. That keeps true to our aim to have a single body responsible for SuDS approval and adoption.

I am concerned about the amount of surface water that goes into some of our sewers, particularly where it causes a lot of sewage  overspill into areas such as the Burry inlet, which has as many letters after its name as one could possibly imagine because of its huge variety of habitats and wildlife.

I understand that we need to keep our highways free from excess water that could otherwise flood people’s properties. However, will the Minister say how water companies will be able to raise the alarm with local authorities and say, “We simply cannot just take whatever you throw at us”? It has come to light in my area that the water that is causing the problems seems to be coming more from the highways than from people’s properties. It seems to be coming from areas of land, whether they be car parks, highways or whatever, that are the responsibility of local authorities. We seem to have a situation whereby the authorities just expect water companies such as Welsh Water to cope with endless amounts of water. Will the Minister explain how we will ensure that we do not overload the water companies?

I thank my hon. Friend for her comments. I recognise that water companies and others have genuine concerns about how the proposals will work in practice. However, I think we have got the lines of responsibility, accountability and liability right. Water companies are statutory consultees to the SAB process, so it will not be one-way traffic.

I can give my hon. Friend and the hon. Member for Vale of York, who has also raised this point, a further assurance that has come out of the good discussions I have had with representatives of the water companies over the past couple of days. I gave the undertaking, which I am happy to give before the Committee today, that I will meet with representatives of the water companies to discuss the issue with them further, particularly with regard to how we can clarify through regulations exactly how we expect the authorities to deal with water companies and others to ensure that they are part of the process.

The hon. Member for Llanelli has hit absolutely the right spot. Water companies are consulted on planning commissions, but I wish to go further and give them the same statutory responsibility as the Environment Agency has to set conditions. If water companies think that the infrastructure simply does not have the capacity for a major new development, be it a SuDS or a major development that is not a SuDS and connects through the foul water, they should be able to put conditions on the planning permission. I understand that that is not the current position, but that is what we want to see.

I give the hon. Lady and my hon. Friend the Member for Llanelli the further assurance that the discussions that I intend to have with the water companies will reflect the concerns over how the regulations and guidance can accurately reflect the importance of the companies’ input into the process. However, it is essential that we retain the clarity in the Bill that the SAB becomes the adopter and maintainer, in line with its wider roles.

The hon. Lady makes the important point that we must minimise the possibility—although we cannot rule it out—that water companies will be left out of the process by omission. They cannot be because they are part and parcel of the process. They are consultees  under the Bill and I am happy to flesh that out in further discussions with representatives of the water industry over the next few days.

May I clarify that there are effectively three-way discussions between the planning authorities, the back-stop of the Environment Agency and the water companies? When we get a larger development, presumably they will sit down before they go to the developer to look at some of the objective reasons as to whether the development is sensible, and then they will approach the developer. That is the way forward.

Yes, that is exactly what we need to flesh out in both the guidance and the regulations, to make sure that this works in practice. That is why I think that we can go further than current planning guidance to make explicit how we expect this kind of triangulation of views to work out.

The Minister knows that this is a matter of great concern to a number of us on the Committee and to our local water companies. Can he clarify how he will report back to the Committee or to the House on the outcome of his discussions?

I am happy to report back, either in writing if the discussions take place in the next couple of days, diary permitting, or on Report, so that everyone will know exactly what has happened.

We need to go further than that. It is all very well the Minister having talks behind closed doors. I want his assurance that he will introduce Government amendments to address the issues.

I am afraid that I cannot give the hon. Lady that assurance, and she will have to decide whether she wants to press the Amendment to a vote on that basis. The assurance that I can give is that we can and will clarify the matter through regulations and guidance, but if she does not feel that that is appropriate, that judgment is for her. I can tell her that we have had discussions with water companies in the past couple of days, and they are open to the idea of sitting down and discussing the issues to find a way forward.

Will the Minister give way?

Yes, but I may return to some of the points that have been raised.

I accept that, but I am sure that no water company would turn down the opportunity for discussions. In its recent memorandum to members of the Committee, Dwr Cymru stated that

“the Bill allows SUDS to drain into public sewers, without giving sewerage undertakers adequate control over the quantity (or quality) of the flows. This will inevitably cause more sewage flooding and/or more frequent spills from overloaded sewerage...For example paragraph 11(3)(a) of Schedule 3 requires the SUDS Approving Body (SAB) only to ‘consult’ the relevant sewerage undertaker...In contrast, under paragraph 15, the sewerage undertaker must allow approved SUDS schemes to connect to its sewers, whether or not the sewers have the capacity to cope.”

These are matters of detail on the face of the Bill, and they do require an Amendment to the Bill, not just further consultation, surely.

I am not sure that I agree. Let me make it clear once again that the SAB has to consult the Environment Agency, and construction cannot start until the full drainage system is approved. Also, we fully acknowledge that water and sewerage companies are well placed to feed in local knowledge about the capacity of sewers, plans for future provision, and hot spots, as has been referred to by my hon. Friends the Members for Stroud and for Llanelli. Therefore, we have made them statutory consultees for the process, and that role will give them the opportunity to consider drainage applications and the impact on the wider sewerage network, and to feed back their advice to the SuDS-approving body. That is set out as a statutory requirement in paragraph 11(3)(a) of the schedule, which states that

“the approving body must consult...any sewerage undertaker with whose public sewer the drainage system” is related. If it failed to consult, it would be in breach of the provisions.

I do not want to go around in circles. As I have said, it is my firm view that we can set out the requirement in  regulations and subsequent guidance to make sure that the scheme works. I understand that there is a difference of opinion, and that some believe that it must be included in the Bill.

It also must be emphasised that water and sewerage companies are under a general duty to provide, maintain and extend the public sewerage system in their area. There is a reciprocal arrangement: in complying with their duty, they should take into account proposals for new development in development plan documents and elsewhere, and the SAB can set conditions on approval. They can work with the water companies as statutory consultees.

Several other points were raised. Is the approval authority that gives approval to a SuDS going to be responsible for adopting SuDS? Yes.

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at One o’clock.